Planning for the return to a physical workplace is quickly becoming a top priority for many employers.
As workplaces return to the “new normal,” there will inevitably be tension between an employer’s right to require physical presence in the workplace and some employees’ desire to maintain the new status quo of remote working. This article addresses some of the considerations and factors employers need to assess in planning for a return to work.
What are an employer’s rights to require attendance on-site?
It is a basic legal principle that employers can dictate how work is to be performed by employees, and this includes deciding where they will work. Generally, employees do not have a unilateral right to dictate remote working arrangement, and employers can insist on presence at the workplace without triggering a claim for constructive dismissal. This is true even if an employee believes that working from home is more efficient or preferable, or if the employee has already relocated during the pandemic. An employee who refuses to follow his or her employer’s direction to return to the workplace could be subject to discipline (including termination) for insubordination.
What are an employee’s rights to stay home?
While an employer has the right to require physical presence in the workplace, there are some exceptions to this rule: refusal of unsafe work, an employee’s right to protected leaves and human rights accommodations that may require an employer to continue work-from-home arrangements.
Refusal of unsafe work
The Workers Compensation Act provides a mechanism for employees to refuse to follow a direction from an employer because the work is believed to be unsafe. The onus will be on an employee to establish that working on-site is unsafe, and to follow WorkSafeBC’s protocol, which includes raising the matter with management and engaging in discussions. While every work refusal will be assessed individually, it is unlikely that the general danger posed by the pandemic will be sufficient on its own to justify a refusal to attend the workplace.
The Employment Standards Act provides employees with job-protected leaves for several COVID-19 related reasons. Employees can refuse to come back to the physical workplace and instead take an unpaid leave of absence if:
•they are isolating or in quarantine in compliance with a public health directive;
•they need to provide care to a child, child with disability or parent for a reason related to COVID-19;
•they are unable to return to work due to travel or border restrictions; or
•they are more susceptible to COVID-19 in the opinion of a medical professional and are receiving Canada recovery sickness benefits for the leave.
Importantly, the Employment Standards Act does not give the employee the right to continue working from home or to have some kind of hybrid arrangement.
Human rights obligations
Many employees who resist returning to work on-site will advance a medical or other issue that may trigger an employer’s duty to accommodate under the Human Rights Code. We are seeing employees assert that their physical or mental disability, age and/or family status requires the continuation of a work-from-home arrangement.
If an employee takes this position, employers should inquire into the reason for the refusal to return to the workplace and be prepared to assess each request case by case. In some circumstances, employers may need to continue remote working arrangements for these employees, even while they are requiring their co-workers to come back to work.
However, employees have a duty to facilitate their accommodation and will need to provide sufficient information (including medical, if applicable) to allow the employer to properly assess the request. Employees are also under a duty to accept a reasonable accommodation offered by an employer, and cannot hold out or insist on their ideal or preferred solution. If an employer offers a reasonable accommodation that is refused, it will have discharged its duty to accommodate.
There can also be interplay between accommodation and the Employment Standards Act COVID-19 leaves. When assessing an accommodation request, employers should be mindful of whether a leave is an appropriate option, particularly with family care-related matters.
Continued remote working arrangements
Post pandemic, remote work will still be an attractive option for many employers and employees, and many workplaces will be changing to incorporate these preferences long-term. As some employers shift to fully remote working arrangements and others implement a flexible “hybrid model” in which there is a combination of working in the office and at home, employers will need to ensure they are effectively managing the unique legal risks associated with continued remote working arrangements. Employers need to continue to meet their WorkSafeBC occupational health and safety duties for employees working from home. While employers may want to implement certain policies to ensure productivity and protection of confidential information, they will need to balance the employee’s right to privacy. Clear policies will need to be in place regarding such issues as the use of personal or company computers, key-tracking and other productivity software.
Returning to the physical workplace is a complex issue with a number of competing considerations. The best thing that employers can do is continue to be flexible and try to create a workplace that balances both employee and employer needs, while ensuring they have the necessary policies in place to respond to the ever-evolving workplace. •
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.
Maggie Campbell is a partner at Roper Greyell, where she practises in all areas of employment and labour law. Tamara Navaratnam is an associate at Roper Greyell.